One problem with the new citizenship oath: Citizens can’t really violate an Indigenous treaty

Much like a peace treaty between nation states, it's legally impossible for Canadian citizens to personally violate an Indigenous treaty

Luiz capitulino,11, of Brazil joins others in the oath as they become official Canadians during a citizenship ceremony at the National Arts Centre in Ottawa on Monday, Sept. 25, 2017. The Canadian Press/Sean Kilpatrick

In a measure likely set to debut next year, the Canadian citizenship oath will soon include its first-ever reference to Indigenous people by including a pledge to “faithfully observe the laws of Canada including treaties with Indigenous Peoples.”

Canada’s various treaties are compacts between the Crown and specific Indigenous groups. Just as with a peace treaty between nation states, there’s no real room for individual citizens to uphold or invalidate them.

“Off-hand, I cannot think of how an individual non-Indigenous Canadian could ‘fail to observe’ a treaty unless they were acting as a representative of the federal or provincial government,” said Michael Coyle, a Western University legal expert on Indigenous land claims and treaty rights.

Edmonton Mayor Don Iveson and Treaty Six Chiefs holds up a Treaty Six flag during the second annual Treaty Six Day proclaimation at city hall Edmonton, Alberta on September 25, 2014.Perry Mah/Edmonton Sun

This is in sharp contrast to other Canadian laws such as the Criminal Code or the Copyright Act, which do require new Canadians to faithfully observe them.

For instance, Treaty 6, signed in 1876, covers a wide belt of prairie that now includes Saskatoon and Edmonton. In exchange for ceding those lands to Her Majesty “forever,” Cree and other signatories were pledged government support including ammunition, farming equipment, medicine and aid in the case of “pestilence” or “famine.”

A non-Indigenous citizen could illegally squat on reserve lands guaranteed by Treaty Six, but that’s not a treaty violation; it’s trespassing, a Criminal Code offence. Treaty Six would only begin to be violated if the Crown failed to dispatch the RCMP to remove the trespasser.

Norah Jane Nattaway of the Garden Hill First Nation smiles as she receives her $5 annual payment, a provision of Treaty Five, from RCMP Constable Marge Hudson during a ceremony.Postmedia File

The same is true of an initial Treaty Six pledge to protect signatories from the “evil influence of the use of intoxicating liquors” — a measure that was phased out in the 1950s.

If an early 1900s trader sold whiskey on a reserve, it would not have been a treaty violation; it would have been a violation of the Indian Act, which was passed in part to enforce treaty measures.

Even modern treaties do not mention the responsibilities of individual citizens. The Nisga’a Final Agreement, signed in 1998, only cites the rights and responsibilities of the signatories; the Nisga’a Nation and the governments of British Columbia and Canada.

Map showing the modern treaties and self-government agreements signed in Canada since 1975.Government of Canada

“I suppose you could indirectly argue, since treaties are part of the law of Canada and indeed of the constitution since 1982, that individual Canadians should be concerned that the government live up to them,” said University of Calgary political scientist Thomas Flanagan, writing in an email to the National Post.

Even there, an elected Canadian government would not be able to openly flout its treaty obligations without butting up against the courts. As with any legal agreement, First Nations can sue the Crown for breaching contract.

There have been Canadian laws that called on individual Canadians to recognize Indigenous rights, but these have not been treaties.

The most famous is likely the 1763 Royal Proclamation, which King George III enacted in his North American colonies in order to preserve inland native territory by restricting colonial settlement west of the Appalachian Mountains.

Instead, the proclamation ended up being one of the cited causes of the American War of Independence. In the Declaration of Independence, colonists accused King George III of pandering to “merciless Indian savages.”

SASKATOON,SK;13JUN07Treaty Days were held in Meewasin Park Wednesday and Thursday. As part of Treaty 6 signed in 1876, members of certain bands receive five dollars. Back in 1876, they could also get twine, barbed wire,oats for their horses and ammunition for their hunting guns. Kevin Lysake with Indian Affairs and RCMP officer Cst. Ron McDonald were on hand for the event. SP Photo by Richard Marjan

The text for Canada’s new citizenship oath is taken verbatim from the 94th and final recommendation of the Truth and Reconciliation Commission.

The Commission also called on Canada to revise its citizenship guide to include “information about the Treaties and the history of residential schools.”

An internal report from Citizenship and Immigration Canada also noted that citizenship ceremonies may soon open by acknowledging the traditional Indigenous territories on which participants are standing; a practice that is already standard at public gatherings in parts of Western Canada and the North.

The idea with the new oath is to remind incoming Canadians that their new home is most likely situated on land that their government obtained thanks to a standing agreement with an Indigenous band.

“All who live on treaty lands are ‘treaty people’, in the sense that they benefit from the past and continuing treaty relationship with the Indigenous peoples who entered those treaties to share the land,” said Coyle.

Ogichidaa Francis Kavanaugh of Grand Council Treaty 3 (right) reads out the declaration that he signed along with Mayor of Kenora Dave Canfield (centre) prior to the raising of the Treaty 3 flag on Wednesday, June 21 on National Aboriginal Day.Kathleen Charlebois/Postmedia Network

But the oath also leaves out thousands of Canadian Indigenous people whose home nations never inked a treaty with the Crown.

Vast swaths of British Columbia, for instance, lie on untreatied land. In 2014, the City of Vancouver acknowledged as much with a resolution noting that they are on lands that “were never ceded through treaty, war or surrender.”

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